Abuse online may repel us, but it shouldn't be a crime

Geert Wilders at a press conference at the House of Lords. The Muslim Council of Britain did not call for the banning of his anti-Islamic film Fitna because it did not want to erode freedom of speech. Photograph: Graeme Robertson

How does a self-confessed free speech fundamentalist respond to recent pieces by Mehdi Hasan, Inayat Bunglawala, Huma Qureshi and others about the abusive and intimidatory rhetoric to which Muslim writers are subject online? In a universe of instant-access social media, in which anonymous, direct abuse no longer relies on the abuser having access to an address or a phone number, is the sacred and inalienable right to insult and offend still good enough? For me the answer is still "yes", with an increasingly large "but".

First of all, there are two obvious reasons – well, excuses – for commentary on this topic being particularly virulent. One is that infringements of free speech (The Satanic Verses, the Danish cartoons) are high on the charge list against Islam. The other is that anti-Muslims (including but not restricted to the far right) can therefore defend Islamaphobic rhetoric on the grounds that they are exercising and defending an ancient British liberty.

Well, it isn't that ancient a liberty: blasphemy was a criminal offence well into this century. But the character of censorship has changed. Although the state still criminalises certain speech-acts (largely those which incite others to violence), the free speech debate has shifted from resistance to state power to protests against material that causes groups distress or offence, a form – if you like – of consumer protection.

Further, free speech is exercised across a vastly more complex and various set of sites, with myriad complex and mutating speech-rules, in which instant responses, angry outbursts and private remarks appear on permanent record for anyone who cares to access them. Actually, and rightly, what we say under oath in court has more weight than what we shout at an errant motorist or whisper to a friend. On television, matter can be shown after 9pm that (properly) you can't show before. Even after the watershed, you can say things on Mock the Week that you can't on Newsnight. Human discourse would be impossible if everything we said privately ended up broadcast to the world.

It's therefore right that different sites have different rules. As Hasan and Simon Woolley report, there are places were you can say "get out of my country, goatfucker" and "you dirty black nigger cunt" and places where you can't. An example is the site on which you are reading this. Despite its title, Comment is free is constrained by its own "community standards", which seek not only to protect the newspaper legally, but also to create an environment that reflects the Guardian's own ethos. So, the site aims to be "an inviting space", in which users are invited "to find ways of sharing their views that do not feel divisive, threatening or toxic"; smear tactics, personal attacks and mindless abuse will not be tolerated; and posts that breach the guidelines – well, rules – will be removed.

So do these quite restrictive guidelines, backed up by severe and uncontestable penalties (you can be banned from the site), give the lie to the claim that Comment is free opens up the Guardian to genuine free debate? No, they don't. What the Guardian is acknowledging is that a speech community can decide its own rules. On that basis, it could well tighten those rules to ensure that its Muslim contributors do not feel intimidated.

But despite all that, there remains for me one essential caveat. Not being allowed to say things everywhere is only justifiable if you can say them somewhere. A newspaper or a debating society or a football club can decide and enforce its speech-rules, on pain of censorship or expulsion, but the state shouldn't, on pain of arrest.

Gary Younge is right to attack abusers who pay less attention to what they do than their entitlement to do it; having a right doesn't make it right to exercise it. But being abusive shouldn't be a crime, which is why I support Peter Tatchell in his campaign against the provisions of the 1986 Public Order Act which make the use of "insulting words and behaviour" a criminal offence. I also backed the successful addition of a clause protecting criticism, abuse, insult and ridicule to the 2006 Racial and Religious Hatred Act.

The latter case is instructive because that bill – seen as defending Muslims against abuse – was (rightly) emasculated at the same time as the bill criminalising "glorification" of terrorism – seen by some as a way of stopping Muslims defending acts of force – was (wrongly) passed virtually unamended.

The first people to suffer from legal infringements of free speech are always the powerless. This is why the Muslim Council of Britain didn't call for the banning of Geert Wilders' anti-Islamic film Fitna, on the grounds (as Bunglawala put it) that "the same freedoms which allow Wilders to taunt Muslims so openly" are also the ones that allow Muslims and others to spread their faith.

In the same way that, in the mid-00s, football fans won the English flag back from the far right, so the recently won and always vulnerable banner of free speech has been expropriated by those whose practice is designed to discourage other people from exercising it. I'm not that bothered about the flag, but free speech is too precious a thing to lose to people who don't really believe in it. It needs winning back.

The aim of this series is to explore the changing nature of racism and racist politics, particularly as it relates to online behaviour. Racism continues to dominate the headlines, from the rise of the far right to the status of racial abuse on social media. Nevertheless, not only is the nature and impact of racism disputed, the very idea of racism is contested. This series of articles will investigate these disputes. What is recognised as racism and, in diverse and unequal societies, who gets to decide?